#### Elkins *et al. versus*Empire Transportation Company.

1. By a bill of lading of a transportation company, loss occurring during the transportation was to be “ computed at the value of the cost of the goods at the time and place of shipment.” A tariff of rates of freight put “high wines ” in the first class, and in thé fourth class *“*high wines ” . . . “ at an agreed valuation, not exceeding §20 per barrelthe freight for first class was §1.60, for fourth class 50 cents per 100 pounds. The rate of freight *written*in the bill was “ 50 cents per 100 pounds,” and “valuation §20 per barrel.” *Held,*that this valuation and rate were controlling parts of the bill, and loss accruing to the goods was to be estimated at §20 per barrel.

2. The parts written in the printed bill express the true contract, and §20 per barrel was to be i'egarded as the value fixed by the parties in advance.

3. Common carriers, unless as limited by special contract, are insurers against all accidents, except such as occur by act of God or public enemies. *Per Thayer, J., Pist. Gt.*

4. A carrier by special agreement may limit his responsibility to a sum proportioned to his compensation and risk, irrespective of what otherwise might be the loss. *Id.*

5. A contract limiting responsibility of a carrier need not be by express words; it may be implied from all the circumstances, the acts of the parties, the course of business, the regulations known to shippers, etc. *Id.*

February 17th, 1876.

Before Agnew, C. J., Sharswood, Mercur, Gordon, Paxson, and Woodward, JJ.

Error to the District Court of Philadelphia, of July Term, 1874, No. 48.

This was an action on the case brought November 30th, 1872, by William L. Elkins and George W. Middleton, trading as Elkins & Middleton, against the Empire Transportation Company.

The cause of action set out in the declaration was that the plaintiff caused to be delivered to the defendants at Peoria, Illinois, fifty barrels of high wines-worth $10,000-, to be safely carried to Philadelphia and delivered to the plaintiff, but the defendants did not so deliver, but lost them by negligence.

*316The bill of lading contained as follows :

. ii* if ^

“Empire Transportation Company’s East Freight Line.

“ This bill of lading is from Peoria to Philadelphia, Pa. The rate of freight through is 50 cents per 100 pounds per barrel.

* **** ;K *%*

“Received at Peoria, 111., May 20th, 1872, of A. Nusbaum & Co., the following packages (contents unknown), in apparent good order:.

“ Marks:

Order. 50 bbls. h. wines.

Canoll, Thorne & Co. 18,000 lbs.

Notify Elkins & Middleton, C. R. I. *&*P. 3026.

Philadelphia, Pa. Valuation, $20 per bbl.”

“ To be transported by the Empire Transportation Company, and the steamboats, railroad companies, and forwarding lines with which it connects, to

“Nos. 2951 to 3000. Upon the following conditions :

* * * i}C

“ And it is further agreed) that the amount of the loss or damage so accruing,- so far as it shall fall upon the carriers above described, shall be computed at the value. or cost of said goods or property at the place and time of shipment under this bill of lading.”

‡ ‡ $

“Notice. — In accepting this bill of lading, the shipper or other agent of the owner of the property carried expressly accepts and agrees to all its stipulations, exceptions and conditions. -

“ In witness whereof the agent has affirmed to two bills of lading of this tenor and date, one of which being accomplished, the others are to stand void.

“ Original. H. E. Laing,

Agent.

(Indorsed) “ Canoli, Thorne & Co,”

The rate of freight, “ 50 cents per 100 pounds ” and “ valuation $20 per barrel,” with the marks, etc., are *written*in the blanks of the printed bill of lading.

The case was tried April 1st, 1874, before Thayer, J.

The bill of lading was given in evidence by the plaintiffs; they also gave in evidence the deposition of A. J. JBoylan; he testified:

He was in the commission business at Peoria; A. Nusbaum & Co. were, distillers; Canoll, Thorne & Co. were *317commission merchants, both firms doing business in Peoria. On the 20th of May, 1872, Nusbaum & Oo. sold fifty barrels of high wines to the plaintiffs for $2768.55. Nusbaum & Co., about May 20th, 1872, delivered these wines to the Empire Transportation Company at Peoria; the witness, as “ Canoll, Thorne & Co.,” - received from Charles Ulrich for the defendants, the bill of lading; the “ notation valuation $20 per barrel ” was made by Ulrich, who issued the bill of lading. Neither Nusbaum & Co., nor plaintiff, nor Canoll, Thorne & Co., nor witness for them, authorized any limitations for defendant’s liabilities for loss or damage on this merchandise! Witness did not agree with Laing, or the parties signing the bill of lading, that they should not be responsible beyond the valuation of $20 per barrel. Laing must have known that the shipment was. worth more than $20 per barrel. “ For the past three years I have shipped as Canoll, Thorne & Co., high wines exceeding $20 per barrel at the rates charged for fourth-class merchandise; the notation, valuation $20 per barrel,’ is usually made on bills of lading of high wines from Peoria.”

In answer to the fourth and fifth cross-interrogatories, witness said: “Subsequently to’issuing this bill of lading, I did state to Mr. Laing that if a bill of lading was given to me with the $20 valuation, I should not have objected to receive it. ... I did at one time promise to give Mr. Laing a letter, that there was au implied understanding, in view of their giving us a bill of lading at fourth-class rates, that the $20 valuation was to be insured. . . . Canoll, Thorne & Co. have been large shippers of high wines *via*the Empire Transportation Company ; at no time the value has exceeded $20 per barrel, though most of the bills have the $20 valuation clause inserted.”

The plaintiffs objected to the admission of the answers to the fourth and fifth cross-interrogatories.

The Court overruled the objections and sealed a bill of exceptions.

Elkins, one of the plaintiffs, testified that he went to the office of the defendants and found the barrels broken, and told the agent there that he would not take them; the agent told him to take them as they were, have them gauged, and the loss could be settled afterwards; he had had other shipments of high wines, and the bills of lading had always the same valuation; he knew that high wines with this valuation on the bill of lading would be in the fourth class and pay a lower freight than in the first class; if it had been in the first class the freight would have been doubled. Witness never authorized, or knew of any other agreement than the *318bill of lading. Tbe plaintiffs received seven full barrels and six partly empty, in all, 623.79 gallons ; the remainder was Tost by an accident on the railroad. Plaintiffs received the bill of A. Nusbaum *&*Co.', for this shipment, for $2783.70, with the draft attached to it, through the bank, which they paid on the credit and -faith of the bill of lading ; without the bill'of lading they would not have paid the draft.

The defendants gave in evidence the deposition of EL. E. Laing, their agent at Peoria. He testified that about the 20th of May, 1872, Nusbaum & Co. loaded a car with high wines, for which A. J. Boylan, of Canoll, Thorne *&*Co., procured bills of lading; they were shipped at fourth class, or reduced rates, under the $20 valuation clause; at the time of shipment it was understood that all freight should go at fourth-class rates, under the $20 valuation clause.

A classification of eastward bound freight was annexed to the deposition, and is hereafter inserted.

The witness testified: “ In regard to the knowledge Can-oil, Thorne & Co. had of this classification and the charges for shipment, all I can say is, said firm had been shipping high wines by defendants’ line for several years prior to this shipment, and had always received bills of lading precisely like ” that given in this case, with the $20 valuation clause in them; they knew the contents; Boylan, for months before this shipment, was in the habit of receiving bills of lading exactly like this; he always examined them.

Part of the fifth interrogatory in the- deposition was: (“ What was the object of so inserting the $20 valuation?”) The answer was: “ The $20 valuation clause was inserted in all bills of lading that were shipped at fourth-class rates by authority of the defendants. . . . When high wines were taken at any other than first-class rates neither Canoll, Thorne & Co., nor any person for them, ever objected to it, but received the bills. (The classification of high wines rated then first class, $1.60 per 100 pounds, but, in consideration of defendants taking said freight at fourth-class rates, the shippers agreed to hold the line liable, in case of loss, for only $20 per barrel; therefore the insertion of the clause, ‘ valuation $20 per barrel’ in all high wines bills of lading.”)

Part of the sixth interrogatory was: (“ Without such clause would the said merchandise have been received by you or carried by the defendants? If aye, on what terms, and at what rates ?”)

The answer was: (“ Of course the merchandise would have been carried by the defendants without the $20 valuation clause, but it would have been received and carried only as first-class freight, at $1.60 per 100 pounds.)

*319The plaintiffs objected to parts of thó deposition in brackets; they were admitted, and several bills of exception sealed.

The classification was contained in the following:

*****

“ Empire Transportation Company. .... Special freight notice. On and after the date hereof, and until these prices are changed, the Empire Transportation Company will transport property, rail all the way, at the following prices, viz.:

*% &**

" First class: Alcohol, high wines, domestic liquors, pure spirits in casks or barrels, duty paid, etc.

*****

“Fourth class: High wines, alcohol, pure spirits, domestic liquors and whiskey, owner’s risk of leakage, in bond, or at an agreed valuation, not exceeding $20 per barrel.

“ From Peoria to Philadelphia, first class, per 100 pounds, $1.60 ; second class, per 100 pounds, $1.20; third class, per 100 pounds, 80 cents ; fourth class, per 100 pounds, 50 cents.” * * * ' * *

The plaintiffs’ points were:

1. Under the legal construction of the contract expressed in the bill of lading in this case, the liability of the defendants for the plaintiffs’ loss is *not*limited to $20 per barrel.

2. If the jury do not find from the evidence that the plaintiffs, or Canoll, Thornfe & Co., made an actual agreement that they would not hold the defendants liable for more than $20 per barrel in case of loss of the shipment in question, the defendants’ liability for loss is *not*limited to $20 per barrel.

The Court denied the first point, and affirmed the second point, adding, “but such an agreement may be found from' the facts, if the jury think the facts in evidence prove it.”

The Court charged :

*¿¡l*5ft *$í*

“ Common carriers, except as their resposibilities are limited by special contract, are insurers against all accidents except such as occur by the act of God or public enemies. How far and by what means they can limit their responsibility has been a subject of much controversy in the courts. But whatever the state of the law may be upon the general question, it is not doubted that it is competent for the carrier to contract, by special agreement with the shipper, in such a way as to limit his responsibility to a sum proportioned to his compensation and to his risk. He is not. obliged to carry things of great value for the same price a», things less valuable. The bill of lading in this case, which. *320is otherwise in the usual form of a general bill of lading, contains the words, “ valuation $20 per barrel.” This merchandise was bought of A. Nusbaum & Co., and shipped by their agents, or the agents of the consignees, Canoll, Thorne & Co., from Peoria. Boylan was the person who attended on behalf of Canoll, Thorne *&*Co., acting for the shippers, and on the part of the transportation company Laing attended to the business. The defendants’ allegation as to the excess of loss over $20 per barrel, is that they contracted to be responsible .only at the rate of $20 per barrel in case of loss, and that that should be the limit of their responsibility. They say that their compensation for the service performed, and for the risk run, was fixed and regulated by this valuation. The plaintiffs claim the whole value of the loss, and that the defendants are liable for the whole value, notwithstanding the words on the bill of lading.

“ I suppose any one searching for the truth, would naturally look at these -words in the bill of lading, and inquire what do they mean? Is it a mere form? Might any other sum as well be put there? or is it there because it refers to something connected with the contract ? The defendants say it was put there in pursuance of an agreement well understood by the shippers; that the company regulated their charges according to the merchandise to be carried: for first class, $1.60; second class, $1.20 ; third class, 80 cents ; and fourth class 50 cents per 100 pounds, and this was valued under the fourth class, because that represented the risk they were willing to undei’go for the compensation received; and this is the reason and meaning of the words; and they allege that this was fully well known to Boylan, and Canoll, Thorne & Co., the shippers, and that the hill of lading was made with that perfect understanding of its meaning, and the freight paid for accordingly. On the other hand it is said, that notwithstanding those words, there was no agreement about it; that they never agreed or promised the company they should not be held responsible beyond the limit of $20 per barrel; that there was no express contract to that effect. (If there was no contract limiting the responsibility, they are reponsible for the whole loss; but if there.was a contract, either express or implied, that they were not to be held liable beyond $20 per barrel, they are not liable beyond that. It is not necessary for you to find that Canoll, Thorne & Co.,or Boylan, should have said in so many words, we will not hold you for any more than $20 per barrel.) It is not necessary that they should have used those words; the contract may be found by the jury from all the circumstances, from the acts of the parties and the various items of evidence, as well as from *321express words of the party himself, and if you find such a contract from all the facts and circumstances in evidence in the case, you should limit the liability to $20 per barrel; but if you find no such contract, then you should find a verdict for the whole loss. I will sum up all I have to say in these two statements, which I repeat. If the shippers agreed with the carrier that his responsibility should be limited by the valuation, no more can be recovered, and if they did not, then the whole loss may be recovered ; (2d, such an agreement to limit the responsibility according to the valuation may be found from the facts in evidence, if fairly deducible from them, although the shipper did not in express words tell the carrier he would so limit his responsibility. It may be implied from circumstances, as from a course of business and regulations known to the shippers, taken in connection with his acceptance of a bill of lading based on such a course of business and regulations known to the shipper.) I leave it to you to decide as a question of fact, whether the responsibility of the carrier was limited or not by an agreement as to valuation.”

• The jury afterwards having come into court, and informed the Court that they could not agree, the Court said: (“Isee no reason why you should not agree to a verdict, and cannot discharge you. If you desire any further instruction' upon any question of law, I will answer any point upon which you may desire information.” Whereupon the foreman of the jury stated to the Court that some of, the jury had a difficulty as to whether Elkins *&*Middleton were parties to the understanding in regard to the limitation of the defendants’ liability according to the valuation, and thereupon the Court said to the jury, “It is of no cónsequeuce what Elkins & Middleton understood in regard to the limitation of the defendants’ responsibility. They were the consignees. They were here, whereas the shipment was made at Peoria,'in Illinois; and the question is what the shippers who made the contract understood and agreed to. If the design was, by ■writing in the bill of lading ‘ valuation $20 per barrel,’ to limit the responsibility of the company to that valuation, and if that was so understood and agreed to by the shippers who made the contract with the company, then Elkins & Middleton are bound by that.”)

The verdict was for the plaintiffs for $955.03.

The plaintiffs took a writ of error.

They assigned for error: the parts of the depositions objected to, the parts of the charge in brackets, and the answers to the points.

*322*G. L. Crawford,*for plaintiffs in error.

The express provisions of the written contract, that the value or cost of the goods should be the measure of damages, cannot be contradicted or even explained by oral testimony of any parol agreement or understanding with the shipper, the plaintiffs being innocent indorsees for value: 1 Parsons’s Maritime Law, p. 137 ; 2 Redfield, Railways, 169, 71; Dickerson *v.*Seelye, 12 Barb. Supr., 99; Ward *v.*Whitney, 3 Sandf. Sup., 399; O’Brien *v.*Gilchrist, 34 Maine, 554; Backus *v.*Schooner Marengo, 6 McLean, C. C., 487 ; Schooner Reeside, 2 Sumner, 567 ; Laycock *v.*Stevens, 3 Gray, 97 ; Portland Bank *v.*Stubbs, 6 Mass., 422; The Delaware, 14 Wall., 579 ; The Wellington, 1 Biss., 279 ; Simmons *v.*Law, 8 Bosw., 213 ; 3 Keyes, 217.

The Court erred in charging that it was of no consequence what the.plaintiffs understood as to the valuation, and that the only question was what the shippers understood, and in admitting testimony of any facts dehors the bill not brought to the knowledge of the plaintiffs. The contract cannot be contradicted or' varied by implication, the limitation of the liability of a common carrier, even by agreement, being most strictly construed against the carrier, and required to be clearly proved: Shaw *v.*York and N. M. R. Co., 13 Q. B., 347; Browne, Carriers, 157-8 ; N. J. Steam Nav. Co. *v.*Merchants’ Bank, 6 Howard, 383 ; 1 Smith, L. Cas. 82 (Coggs *v.*Bernard), 2 Ld. Raymond, 909. Restrictions of the common-law liability of carriers must be taken most strongly against them, and the language in the contract “ must be unequivocal, and susceptible of no other reasonable interpretation Hooper *v.*Wells, Fargo & Co., 27 Cal., 27, 32; 2 Redfield, Railways, 171, n.; U. S. *v.*Kimball, 13 Wal., S. C., 638 ; Camden and A. R. R. *v.*Baldauf, 4 Harris, 67.

*H. J. McCarthy*and *Porter,*for defendants in error.

A bill of lading is not such a complete contract as to exclude testimony of what is not expressed and necessary to a complete contract: Baltimore and Philadelphia Steamboat Company *v.*Brown, 4 P. F. Smith, 81. A common carrier may, by special contract, limit his liability: Farnham *v.*Camden and A. R. R., 5 P. F. Smith, 53; American Express Company *v.*Sands, Id., 140; Verner *v.*Sweitzer, 8 Casey, 203; Pennsylvania Railroad Company *v.*McCloskey, 11 Harris, 526 ; Bingham *v.*Rogers, 6 W. & S., 495; Laing *v.*Colder, 8 Barr, 479 ; Pennsylvania Railroad Company *v.*Henderson, 1 P. F. Smith, 315; Redfield on Carriers, s. 147; York Co. *v.*Central R. R., 3 Wallace, 107. The liability of a common carrier may be qualified by a general notice: Verner *v.**323Sweitzer, 8 Casey, 208; Camden and Amboy Railroad Company *v.*Baldauf, 4 Harris, 67 ; Farnham *v.*The Camden and Amboy Railroad Company, 5 P. F. Smith, 53; 2 Greenleaf on Evidence, sect. 215; Story on Bailments, 579, s. 556; Selwyn, 402; Marsh *v.*Horne, 5 Barn. & Cress., 322; Thorogood *v.*Marsh, Gow’s R., 105; Morrison *v.*Davis, 8 Harris, 171.

Judgment was entered in the Supreme Court, March 6th, 1876.

Per Curiam :

The valuation of $20 per barrel, written into the blank of the printed bill of lading, together with the stipulated freight at fifty cents per one hundred pounds, are controlling parts, of the bill of lading, and not controlled by the printed stipulation that the amount of the loss or damage accruing and falling on the carriers shall be computed at the value or cost of the goods at the place and time of shipment. These parts, written into the printed bill, express the true contract of the parties, and the $20 per barrel must, therefore, be regarded as the value or cost, fixed by the parties in advance, as that to be treated as such, as of the time and place of shipment. This accords with the evidence that such freight, if left to be determined in value at the place and time of shipment, would not be carried at less than $1.60 per one hundred pounds. There was ample consideration, therefore, for the low valuation in this diminution of the freight as stipulated at fifty cents.

Judgment affirmed.